D.C.A. VS. M.J.A.(L-1026-15, MORRIS COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3744-15T4
D.C.A.,
Plaintiff-Appellant,
v.
M.J.A.,
Defendant-Respondent.
______________________________________________
Submitted May 31, 2017 – Decided November 2, 2017
Before Judges Messano and Grall.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County, Docket
No. L-1026-15.
Stelio G. Papadopoulo, attorney for
appellant.
Bevan, Mosca & Giuditta, PC, attorneys for
respondent (John D. Coyle, of counsel and on
the brief).
PER CURIAM
In this civil action between former spouses on a complaint
and counterclaim alleging "malicious prosecution" and
"abuse/malicious use of process," the trial court granted
defendant's motion for summary judgment on plaintiff's claims
and ordered plaintiff to narrow his "oppressive" discovery
requests. Thereafter, by stipulation and agreement, defendant
dismissed her counterclaim subject to reinstatement in the event
of an appeal and remand.
Plaintiff appeals and challenges both rulings. We affirm
the grant of summary judgment. Because there will be no remand,
the discovery order is moot and we do not address it. Cf. In re
Commitment of N.N., 146 N.J. 112, 124 (1996) (discussing
circumstances warranting consideration of moot orders).
I.
Plaintiff's tort claims are based on defendant's filing and
litigating a complaint seeking a final restraining order (FRO)
pursuant to the Prevention of Domestic Violence Act (PDVA or the
Act), N.J.S.A. 2C:25-17 to -35. In that action, defendant
alleged two predicate acts of "domestic violence" as defined in
N.J.S.A. 2C:25-19(a): stalking, N.J.S.A. 2C:12-10; and
harassment, N.J.S.A. 2C:33-4.
After plaintiff followed defendant while she was driving,
defendant obtained a temporary restraining order (TRO). She
survived plaintiff's motion for dismissal at the close of her
case on issuance of a final restraining order (FRO), but at the
close of defendant's case, the judge of the Family Part
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determined defendant did not establish all the elements of the
predicate acts. He found defendant failed to prove the
essential element of intent required for harassment, N.J.S.A.
2C:33-4, and the essential repeated acts required to establish
the "course of conduct" for stalking, N.J.S.A. 2C:12-10.
In the course of his final decision, the judge made
findings on elements of harassment and stalking defendant had
established. Addressing the evidence presented during the
extended multi-day hearing, including evidence on the history of
domestic violence in this family, the judge explained: "Putting
all those things together, I think I would have to make a
finding that any plaintiff in a similar situation would
reasonably be seriously annoyed and alarmed by seeing [her
husband] behind her." The judge found defendant "truthful,"
believed "she certainly was upset" and that she believed her
husband was following her and was in a "panic." N.J.S.A. 2C:33-
4; see Cesare v. Cesare, 154 N.J. 394, 414-15 (1998) (requiring
an assessment of annoyance and alarm essential to harassment
from the perspective of the complainant and the circumstances of
the relationship); accord State v. Hoffman, 149 N.J. 564, 585
(1997); cf. N.J.S.A. 2C:12-10; State v. Gandhi, 201 N.J. 161,
187 (2010) (noting that stalking requires a course of conduct
that would cause a reasonable person fear).
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Without a predicate act, the judge was required to dismiss
and dissolve the TRO and deny an FRO. Nevertheless, the judge
noted he would not have issued an FRO because he did not think
it was necessary and was concerned defendant "might" use the FRO
"to perhaps, gain an advantage in the custody relationship."
After obtaining a favorable result in the PDVA action,
plaintiff commenced this civil action contending defendant
sought the protection of the PDVA maliciously and without basis.
II.
A.
"Our review of a summary judgment ruling is de novo."
Conley v. Guerrero, 228 N.J. 339, 346 (2017). "[W]e apply the
same standard governing the trial court — we view the evidence
in the light most favorable to the non-moving party." Steinberg
v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 349 (2016) (quoting
Qian v. Toll Bros. Inc., 223 N.J. 124, 134-35 (2015)). To
prevail, the moving party must show entitlement to judgment "as
a matter of law." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). A
defendant can prevail on summary judgment in action alleging a
malicious misuse or abuse of process by establishing that
plaintiff cannot, as a matter of law, prove an essential element
of the claim. See, e.g., Brunson v. Affinity Fed. Credit Union,
199 N.J. 381, 399-400 (2009).
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B.
The facts discernible from the evidential materials
submitted on the motion for summary judgment are stated here in
the light most favorable to plaintiff.1 This action under the
PDVA was not the parties' first, and they were both represented
by counsel. About a year and a half before this complaint,
defendant filed a complaint under the PDVA that she dismissed
because she and plaintiff agreed to restraints outside the PDVA.2
While plaintiff disputed many of the allegations of prior
domestic violence, he admitted he had pushed defendant into a
table in the past.
When defendant filed this complaint in 2014, the parties
were divorced. The divorce did not end amicably. Pursuant to
their decree, neither former spouse is to know where the other
lives. In addition, plaintiff's visitations with their three
1
The materials submitted in support of and opposition to the
summary judgment include the domestic violence complaints, a
post-judgment order entered in the parties' divorce case, and
the pleadings and portions of the transcript of the testimony
and rulings in the final hearing on the PDVA-action underlying
this tort action.
2
In an amended complaint filed after defendant had an attorney,
defendant set forth a history of domestic violence commencing in
1998.
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children are supervised at a center for evaluation and
counseling (CEC).3
The incident that led defendant to file the complaint under
the PDVA that gave rise to this tort action occurred after
defendant picked their children up from a supervised visit with
their father that ended at 5:30 on an evening in mid-November.
Consistent with their usual procedure for transfer of the
children following visitation, defendant left the CEC with the
children and plaintiff delayed his departure. When plaintiff
left, he was going to his workplace to check his schedule for
the next day, and he took the same road in the same direction
defendant was travelling. There was no evidence that defendant
knew or had reason to suspect that plaintiff was going to his
workplace that night.
There is no dispute that plaintiff drove behind defendant's
car in the same lane for at least a mile. Plaintiff was aware
that he was driving behind defendant's car with only a few cars
between them. Defendant saw the headlights of plaintiff's car
behind her. She recognized them because, to her, they were
unusual and looked "alien," like the lights of a space ship.
3
The record on appeal does not include the judgment of divorce,
but defendant referred to the "decree" in her initial complaint
and the information about its terms was undisputed.
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Alarmed, she drove into a parking lot in front of a roadside
restaurant. Plaintiff acknowledged seeing defendant enter the
parking lot and driving past her car. By defendant's account,
plaintiff looked into her car as he passed and made a face that
upset her and the children. Plaintiff denied looking into the
car.
After plaintiff had passed the lot, defendant resumed her
course of travel on the same road. Plaintiff later saw
defendant's car in a lane for left turns and saw her make that
turn. After she turned, defendant saw a car with the same
alien-type headlights as plaintiff's behind her. She believed
plaintiff was driving that car and was trying to follow her and
the children home, and she was alarmed. Accordingly, she went
to a nearby firehouse for help and obtained her TRO that night.
By plaintiff's account, which he supported with GPS
tracking records and testimony from a co-worker introduced at
the hearing, he had not turned left and followed defendant.
Instead, he continued to his workplace.
C.
General principles governing claims of malicious use and
abuse of process inform our review of this summary judgment
motion. Our courts consider these claims "with great caution
because of their capacity to chill resort to our courts by
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persons who believe that they have a criminal complaint or civil
claim against another." LoBiondo v. Schwartz, 199 N.J. 62, 89
(2009).
That cautious approach is especially appropriate when the
civil action is commenced under PDVA. The PDVA is "particularly
solicitous of victims of domestic violence"; the purpose of the
"Act is to assure the victims of domestic violence 'the maximum
protection from abuse the law can provide.'" Hoffman, supra,
149 N.J. at 584 (quoting N.J.S.A. 2C:25-18). The Act
"effectuates the notion that the victim of domestic violence is
entitled to be left alone. To be left alone is, in essence, the
basic protection the law seeks to assure these victims." Ibid.
Recognizing "that in the area of domestic violence, as in
some other areas in our law, some people may attempt to use the
process as a sword rather than as a shield," the Court has
directed the judges of the Family Part to serve as gatekeepers
to avoid such abuse. Id. at 586; accord Cesare v. Cesare, 154
N.J. 394, 416 (1998). As findings of facts quoted above
demonstrate, the Family Part judge who decided this case
mentioned the potential for abuse.
Given the underlying purpose of the PDVA and the
gatekeeping role of judges who decide these cases, an expansive
reading of decisional law addressing these common law torts
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would be highly inappropriate. In this context where emotions
commonly run high, the potential for an unsuccessful applicant
for an FRO being "forced to defend against one of these claims
based on little more than having filed, and lost, in a court
proceeding as to which the original defendant harbors resentment
and anger" is as apparent as the likelihood that such tort
litigation will exacerbate existing hostilities. LoBiondo,
supra, 199 N.J. at 91. In this case, there is "little more"
than the fact that plaintiff ultimately prevailed in the action
under the PDVA to support plaintiff's tort claims.
(1)
Plaintiff's claim of malicious prosecution fails as a
matter of law, because malicious prosecution refers to actions
seeking redress from malicious pursuit of criminal prosecutions.
LoBiondo, supra, 199 N.J. at 89-90. But an action under the
PDVA is not a criminal prosecution. N.J.S.A. 2C:25-19; N.J.S.A.
2C:25-28 to -29; see J.D. v. M.D.F., 207 N.J. 458, 474-75 (2011)
(discussing the distinction between actions under the PDVA and
criminal prosecutions and the varying standards of proof).
Accordingly, defendant was entitled to summary judgment on this
claim.
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(2)
To establish the elements of malicious use of civil process
plaintiff had to show that defendant (1) commenced the PDVA
action; (2) was motivated by malice; (3) did not have probable
cause when she commenced and continued the action; (4) failed to
establish her claim; and (5) caused plaintiff to suffer a
special grievance as a consequence of her filing the complaint
under the PDVA. See LoBiondo, supra, 199 N.J. at 90.
The trial court concluded plaintiff could not establish
defendant lacked probable cause, because the judge of the Family
Part had determined she did when he denied defendant's motion
for involuntary dismissal. Plaintiff objects to this use of
issue preclusion on several grounds, but we are free to and opt
to affirm the grant of summary judgment based on plaintiff's
inability to establish probable cause for a different reason.
See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968)
(noting the commonality and propriety of affirming a valid
determination entered on an erroneous basis).4
4
Reliance on issue preclusion in this context is a matter of
some complexity, and we do not have a full record of the
testimony presented during the hearing on the FRO. See Lind v.
Schmid, 67 N.J. 255, 265-66 (1975) (discussing findings of
probable cause made in the litigation giving rise to a
subsequent claim of malicious prosecution and concluding that
(footnoted continued next page)
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Plaintiff could not, as a matter of law, establish that
defendant did not have probable cause. In this context,
"[p]robable cause is a matter of law to be determined by the
court, and it is only submitted to the jury if the facts giving
rise to probable cause are themselves in dispute." LoBiondo,
supra, 199 N.J. at 93. In determining whether probable cause
exists, courts consider the totality of the circumstances known
to the party at the time, not facts learned later. Brunson,
supra, 199 N.J. at 398.
As to this element of his cause of action, plaintiff had to
"establish a negative, namely, that probable cause did not
exist." Lind v. Schmid, 67 N.J. 255, 263 (1975). Stated
differently, plaintiff had to "demonstrate that . . . when the
defendant put the [PDVA] proceedings in motion the circumstances
were such as not to warrant an ordinarily prudent individual in
believing that [a predicate] offense had been committed." Ibid.
(emphasis in original).
(footnoted continued)
some are and some are not determinative of "probable cause" in a
subsequent action on malicious prosecution or malicious use of
process, which depends upon the adequacy of the court's
pertinent findings). There is no reason to ponder the question
of issue preclusion here, because this case can be resolved by
considering the record presented to the trial court on summary
judgment motion in the light most favorable to plaintiff.
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Here, the totality of circumstances known and knowable to
defendant were undisputed. Plaintiff had used physical force
against defendant in the past, and the parties were subject to a
judgment that precluded each of them from knowing where the
other lived. This incident occurred in the evening near
suppertime and after the children spent an hour of supervised
visitation with their father — a time when plaintiff would
expect defendant to be bringing the children home. Plaintiff
drove behind defendant for about a mile, and he passed near her
car when she pulled into parking lot to avoid his following her.
After plaintiff passed, defendant continued on that road
and took a left turn onto another street, where she noticed
headlights that looked like plaintiff's unusual headlights
behind her on that street. Plaintiff saw her make that turn.
In the totality of these circumstances, an ordinarily
prudent individual would be warranted in believing that
plaintiff was following, harassing and stalking defendant.
Harassment may be established by proof of a "course of alarming
conduct" undertaken "to alarm or seriously annoy" another,
N.J.S.A. 2C:33-4(c). And, stalking may be established by proof
of a "course of conduct" that includes knowingly maintaining
physical proximity under circumstances that "would cause a
reasonable person to fear" for his or her safety or the safety
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of another, N.J.S.A. 2C:12-10(a)(1), (b). An ordinarily prudent
person aware of the totality of these circumstances would have
reason to believe plaintiff followed on the first and second
streets to, at least, annoy her, and on the circumstances known
at the time would have no reason to think plaintiff was simply
driving to his workplace to check on his schedule for the next
day.
We reject plaintiff's claim that plaintiff's exculpatory
explanation eradicated probable cause and required defendant to
withdraw her PDVA-complaint as soon as she heard it.
Plaintiff's explanation did not cover his decision to drive
behind defendant's car until she disrupted her travel and opted
to retreat to a parking lot off the road. Thus, his explanation
did not obliterate the foundation for defendant's complaint.
As the undisputed facts established probable cause as a
matter of law, there was no question for the jury to resolve and
defendant was entitled to summary judgment on plaintiff's claim
of malicious use of process.
(3)
Defendant was also entitled to summary judgment as a matter
of law on plaintiff's claim for malicious abuse of process. An
"action for abuse of process lies for the improper, unwarranted,
and perverted use of process after it has been issued." Earl v.
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Winne, 14 N.J. 119, 128 (1953) (emphasis added) (quoting Ash v.
Cohn, 119 N.J.L. 54, 58 (E. & A. 1937)). "[P]rocess has not
been abused unless after its issuance the defendant reveals an
ulterior purpose [the defendant] had in securing it by
committing 'further acts' whereby [the defendant] demonstrably
uses the process as a means to coerce or oppress the plaintiff."
Tedards v. Auty, 232 N.J. Super. 541, 550 (App. Div. 1989)
(quoting Gambocz v. Apel, 102 N.J. Super. 123, 130-31 (App.
Div.), certif. denied, 52 N.J. 485 (1968)).
The only process issued in this case was the TRO. The TRO
addressed visitation, contact between plaintiff and defendant
and plaintiff's possession of a weapon. As to visitation, the
TRO incorporates the arrangement already provided in the
judgment of divorce; the TRO changed nothing.5 Similarly, the
limitations on contact between the parties included in the TRO
are no more burdensome than those provided in the judgment of
divorce, which precludes each party from knowing where the other
resides.
The prohibition against possession of weapons included in
the TRO is the only significant change effectuated by the TRO,
5
Although the Family Part judge was concerned that defendant
might use an FRO in furtherance of an ulterior purpose related
to custody, the TRO was the only process issued and it was not
used to alter custody or parenting time.
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and that temporary restriction was dissolved at the conclusion
of the hearing on the FRO. Plaintiff contends that because he
could not carry a weapon, he lost the opportunity to earn about
$20,000 overtime pay while the TRO was in place pending
conclusions of the hearing on the FRO.
Granting that plaintiff established economic harm as a
consequence of entry of the TRO, there was no evidence that
would permit a jury to find that defendant sought a TRO with the
"ulterior purpose" of reducing plaintiff's income. There is
nothing in the record that suggests she had that purpose, and
because divorced spouses share the responsibility of supporting
their children, Pascale v. Pascale, 140 N.J. 583, 593 (1995), it
would not be reasonable to infer that defendant, the custodial
parent, sought a TRO with the purpose of diminishing plaintiff's
income. In the absence of any evidence to the contrary, the
economic ramifications of the TRO are more reasonably viewed as
an undesirable and unintended consequence of the TRO than they
are viewed as the malicious motive or the ulterior purpose
actuating defendant's pursuit of an order requiring plaintiff to
leave her alone. Accordingly, defendant was also entitled to
summary judgment on the count of plaintiff's complaint alleging
abuse of process.
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Plaintiff presents several arguments that do not require
discussion given our disposition of the case. R. 2:11-
3(e)(1)(E). He claims the trial court erred by: relying on
issue preclusion; applying the wrong legal standard in granting
judgment on malicious abuse of process; granting judgment on
abuse of process cause without notice and opportunity to be
heard; granting judgment on abuse of process without an adequate
explication of findings and conclusions; overlooking defendant's
failure to provide a statement of material facts; and finding
absence of malice when defendant had not raised the point.
Affirmed.
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